Find a Lawyer

Letters Patent Appeal No. 409 of 1965, decided on 11th March 1966.

Art. 29‑President has power to give retrospective effect by an Ordinance to a provision of law‑Displaced Persons Laws Amendment Ordinance (XVIII of 1965).

Mir Ahmad Nawaz Khan Bugti v. Supdt., District Jail, Lyallpur P L D 1964 Lah. 202 ; United Province v. Mst. Atiqa Begum and others A I R 1941 F C 16 and Khaliq & Najam Co. v. Sales‑tax Officer, B‑ Ward, Lahore and another P L D 1959 Lah. 915 rel.

S. 2 (4)‑Deputy Settlement Commissioner has jurisdiction to declare property as one unit.

Art. 98‑Point, primarily one of fact, not taken before Settlement Authorities‑Cannot be gone into by High Court.

S. 2 (6)‑Settlement Authorities dividing house into shop and residential portion and transferring shop to person in possession of it‑Order equitable‑Person not in possession of shop‑Not entitled to have it transferred in his favour.

Muhammad Muzaffar Raja for Petitioners.

Date of hearing : 11th March 1966.

‑This is an appeal against the order of a learned Single Judge dated 28‑10‑1965. The facts giving rise to the present appeal briefly put are these. The dispute relates to property No. 185, Ward No. 1, Lyallpur. The appellants were in possession of the chaubara whereas the respondent Nawab Din is in possession of the shop on the ground‑floor. The D. S. C. transferred the chaubara along with the shop to the appellants. Nawab Din filed an appeal which was dismissed by the Additional S. C. who, while disposing of the appeal, observed that the property could be disposed of only as one unit. Nawab Din filed a revision before the Settlement Commissioner who transferred‑the shop to Nawab Din on the basis of his possession and the chaubara to the appellants. The appellants filed a second revision before the C. S. C. who dismissed the same by his order dated 18‑5‑1961.

2. The learned Advocate for the appellants has raised two contentions before us, namely, (1) that the President, by an Ordinance, could not give retrospective effect to Ordi nance XVIII of 1965, and (2) that Nawab Din having not filed any form for the transfer of the shop, the case could not be transferred to him.

3. The learned Advocate has challenged the following amendment under the Schedule to Ordinance XVIII of 1965:-

"2. In section 31, after subsection (2), the following new subsection shall be added, namely :‑

(3) Any order passed by a Settlement Commissioner or an Additional, Deputy or Assistant Settlement Commissioner in exercise of any power delegated to him under subsection (2) shall be, and be deemed‑ always to have been, subject to the provisions of Chapter VI in the same manner and to the same extent as any other order passed by a Settlement Commissioner; Additional, Deputy or Assistant Settlement Commissioner, as the case may be, is so subject."

The contention of the learned Advocate is that where the Chief Settlement Commissioner had delegated his powers to any of his Subordinate Officers, the same could not be subject‑matter of an appeal or revision where an order was passed before the promulga tion of Ordinance XVIII of 1965, which came into operation on 2‑6‑1965. In other words, the President has no power to give retrospective effect by an Ordinance to a provision of law. There is no force whatsoever in this contention. In this connection reliance may be placed on several cases, namely, Mir Ahmad Nawaz Khan Bugti v. Supdt., District Jail, Lyallpur (P L D 1964 Lah. 202), United Provinces v. Mst. Atiqa‑ Begum and others (A I R 1941 F C 16), and Khaliq & Najam Co. v. Sales‑tax Officer, B‑ Ward, Lahore and another (P L D 1959 Lah. 915) that an Ordinance may be retrospective in its operation. At any rate, this Ordinance has been approved of by the National Assembly, on the 23rd of July 1965, vide Gazette of Pakistan of even date. Moreover, the D. S. C. could not be said to have exercised the delegated authority in holding that the property was one unit. He has jurisdiction to do so within his own right.

3. In the second place it was contended by the learned Advocate that Nawab Din had not filed any form for the transfer of the shop. The learned Single Judge lightly held that this point having not been urged before the Settlement Authorities he was not inclined to go into this question; which is primarily one of fact. We are of the view that even if there was some force in this contention, the Settlement Authorities having divided the house into a shop and a residential portion, and the shop having been transferred to Nawab Din on the basis of his possession, the order is an equitable one. At any rate, the appellant not being in possession of the shop, could not be transferred the same. The appeal is dismissed in limine.

K. M. A. Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.